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Summary:

Microsoft won the right to unseal documents in a case over an enterprise customer; the ruling is a major legal victory against the federal government’s blanket use of gag orders in its national security investigations.

victory

In a significant victory for transparency and free speech, a federal judge in Seattle granted Microsoft permission to unseal documents related to an FBI investigation into one of its cloud customers.

The case relates to a National Security Letter issued to Microsoft in 2013 that ordered the company to turn over information about one of its enterprise customers, whose identity remains a secret. The customer stores data on Microsoft’s Office 365, a service that lets companies keep email and work collaboration tools in the cloud.

Under the terms of the security letter, Microsoft was barred from disclosing the request to its customer or even describing the letter’s existence. These so-called “gag orders” have been an ongoing source of contention between the tech industry and the government, especially in the wake of leaks by former NSA contractor Edward Snowden.

Microsoft challenged the letter in court, saying the law the FBI used to obtain it violated the First Amendment, and was an unreasonable ban on free speech. In response, the FBI withdrew the demand for the letter — effectively backing down.

In a show of further legal courage, however, Microsoft returned to court to seek permission to disclose information about the process. In response, U.S. District Judge Richard Jones issued an order requiring three documents to be unsealed: Microsoft’s petition challenging the security letter; an agreement between Microsoft and the Justice Department over the FBI letter; and Jones’ unsealing order (all are below).

The judge suggested the unsealing would throw some daylight on the case and provide enough information to let the public decide if it had a legal case to see further documents, which remain under seal:

[This will ]ensure that the public can become aware of the existence of the national security letter that the FBI issued to Microsoft … [Unsealing] will enable any member of the public to seek relief in this court if he or she believes that the redactions are inappropriate or that it is inappropriate to continue to maintain the remainder of the docket in this action under seal. (emphasis mine)

While the name of the enterprise customer remains under seal, the court order is significant because it sheds light on the secretive National Security Letter process (see Google’s helpful explanation here), and places new scrutiny on the government’s frequent use of gag orders.

In a blog post, Microsoft’s head lawyer Brad Smith wrote that privacy for enterprise customers has become an important issue, especially in Europe. He added that, “Fortunately, government requests for customer data belonging to enterprise customers are extremely rare.”

Here are the documents:

Unsealed NSL Challenge

  1. Luciano Ramalho ☂ Thursday, May 22, 2014

    Clearly Microsoft cares a lot about their corporate customers. That is who they are fighting for. Defending the rest of us is not so exciting for Microsoft counsel, I guess.

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  2. Good for MSFT. Glad to hear they are fighting for us.
    Leslie

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  3. Ralph Haygood Thursday, May 22, 2014

    “Microsoft’s head lawyer Brad Smith wrote that privacy for enterprise customers has become an important issue, especially in Europe.”: In other words, Microsoft is having trouble selling to Europeans who – reasonably – believe Microsoft is in bed with America’s megalomaniac spooks.

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  4. The FBI withdrew their request in order to keep it out of the courts. They are (rightly) concerned that if they push back, the case could well end up going to the Supreme Court, which might very well judge NSLs unconstitutional and end the entire practice. This way they get to keep on intimidating other companies while leving MSFT alone. On this issue. For now.

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  5. Jamie McDonald Friday, May 23, 2014

    As an employee of NSA I can assure you the US military and Department of Defense is not bound by the US Constitution as are the Civilian citizens that we are obligated to protect.

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